Investigated: Are 'fangames' legal?

Imagine that you've just spent the last eight years of
your life toiling away at a tribute to your favourite game series.
You've fashioned an exhaustive and comprehensive remake of your
most loved game, drawing and coding its 20 characters and 100
stages from scratch.

And then, imagine just days after your labour of love hits
the internet, packaged as a free PC download for other like-minded
fans to enjoy, the owner of the original game serves you with a
cease and desist letter, telling you in no uncertain terms, to pull
your decade-long magnum opus from the web, or face the
consequences.

That was the crushing story for Spanish coder "Bomber Link",
whose Herculean tribute to Streets of Rage got shut down by Sega's legal team in April, just days after the
eight-year project hit BitTorrent and Rapidshare. But it's a
familiar story to many fans who have had their tributes, remakes
and unofficial sequels quashed by game publishers.

Nintendo killed off onlinePokemonbattlerPokenetand fan-made Zelda filmThe Hero of
Time, Square-Enix shut down unofficial Chrono
Trigger sequel Chrono Resurrection, and fan-made
King's Quest follow-up The Silver Lining fell
into a legal wormhole as Vivendi and Activision constantly changed
their minds over whether the fan game was kosher.

Expressing your admiration for a game in interactive form
just doesn't seem to be worth the hassle -- your labour of love can
easily end in heartbreak if the publisher's legal team gets
involved. But what are your rights when making a fan game? Should
amateur creators bow down to pressure, or stand up and fight for
their cause?

So, is it legal to make a fan game?
Wired.co.uk spoke to Alex Tutty, a digital media IP expert from
London-based solicitors Sheridans,
who's advised and represented clients in relation to areas like
games, apps, website development and virtual goods. He's seen a
rise in fan games too ("Whether this is due to the accessibility of
tech to create them or just that people are getting nostalgic, I
don't know," he remarks).

Essentially, a game like Streets of Rage Remake or
Chrono Resurrection would be seen as simple trade mark or
copyright infringement, and considering that these games slavishly
emulate or reference the games in question, it would be effortless
for a legal team to demonstrate the infringement in court.

"To the extent that a fan game uses the title of the game it
is paying homage to in its title, this may be trade mark
infringement," explains Tutty. Take Streets of Rage
Remake, which uses Sega's trade marked phrase, "Streets of Rage", in its name.
Even if you alter the name ("perhaps Roads of Rage", Tutty
suggests), if Sega can "show that the fan game has used a similar
mark for similar/identical goods and that there is confusion,"
they'll win.

If the name is changed dramatically, the publisher could
zero in on copyright. "Games are protected by copyright in the
source code and in the representations on the screen as artistic
works," explains Tutty, which gives them the same rights as books,
paintings and photos.

"In order to demonstrate copyright infringement, the owner
of the original would need to show that a substantial part of a
screen shot in the original is copied in the fan game," says Tutty.
"Where the fan game copies the original exactly then there is
obviously a huge issue here.

"Effectively what you have in these instances are huge fans
of a game being treated the same as other trade mark or copyright infringers despite having the best intentions," Tutty
declares, hitting the nail squarely on the head. Aren't these the
most loyal, vocal and hardcore customers? Shouldn't publishers be
embracing these projects, rather than suppressing
them?

Unfortunately, by ignoring these infringements companies
would be putting their hard-earned trade marks and copyrights in
danger. "If a company was to continually ignore infringements of a
trade mark, the protection afforded by the mark is eroded and may
render it invalid," Tutty explains. Essentially, if Sega let
Streets of Rage Remake live, it'd have a harder time
arguing its case if a real, bonafide rip-off of the beat 'em up emerged. The same goes for
copyright.

"Once the infringement of IP is ignored it becomes
increasingly hard to recover lost ground," Tutty says. It's a
not-so-simple case of use it or lose it.

This is the exact argument that Sega gave when booting out
Streets of Rage Remake. "We need to protect our
intellectual property rights and this may result in us requesting
that our fans remove online imagery, videos or games in some
instances," a spokesperson for Sega told Wired.co.uk at the
time.

Bomber Games

Seeking permission
So no, without consent, making a fan game is not, generally
speaking, legal. There is something that creators can do if they
want to make a fan game however, and avoid receiving a nasty cease
and desist in their inbox. "Fans who wish to make fan games can approach the owner
of the original and request a licence," Tutty says. "The benefit of
this is that a company has control over third party use of its
material and generates a revenue from it.

"There is no obligation for this to be granted, which leaves
the fans in an unenviable position," Tutty says. You'll have a hard
job getting any of the famous game makers to grant you a license --
Streets of Rage Remake developer Link says the crew
notified Sega, long before the game's release, but heard nothing
back.

What about Valve, the Washington-based creator of Half
Life and Portal, which has embraced the eternally-delayed Half
Life 1 remake, Black Mesa Source? In a 2007 news
post, the firm said,
"We're as eager to play it here as everyone else."

By acknolweding its existence, and publically endorsing it,
Valve could argue that it made an implied licence. "By taking steps
to acknowledge the specific fan game and publicise this," Tutty
says, "Valve has made this endorsement specific to one game, rather
than a general blanket ignoring of all infringements."

For fans looking to pay homage to their favourite game,
while there are more tools, communities and outlets for their creative ambition than
ever, its still a legal minefield with few loopholes to protect
you. If you fancy making a fan game, its probably best to ask
first, or just go and make something unique.

Poll

Should games publishers allow fans to remake their games?

Yes, without question *

Yes, but they should always be asked first *

No, it's up to the original developer to remake *

Remakes are pointless regardless of who makes them *

Edited by Nate Lanxon

Comments

OpenTTD is a fan game, from scratch in the style of Transport Tycoon Deluxe. It changed many elements adding a ton of features and even going so far as to set the v1 requirements as a completely new and free set of media assets.So far I haven't seen any evidence of movement by Microprose or Chris Sawyer to shut it down.This I feel is another noteworthy addition which you failed to mention - especially as it was the 8th most active project on sourceforge from 1999-2005

Thomas Foster

May 5th 2011

I have a copy of this remake and it is brilliant, one of my all time favourite games but this time around I can save it instead of leaving my megadrive on all day!To be honest although the game was pulled by Sega it is still out there in the dark depths of the tinterweb, it had already been realeased to bittorrent and rapidshare so it is out there. It seems almost pointless for Sega to pull the plug on it now, however, it seems to be a trait of Japanese game developers and manufacturers to come down excessively harsh on fan-developers and hacker-developers. Then again look what happended to Sony, you play with fire and you get burned: not that I am condoning hacking overtly restrictive organisations of course.

Luke

May 5th 2011

It's stupid man!We know these companies are trying to protect their beloved IP, but come on man, what are people doing wrong? its not as if they are making money for it.Fan work shows hardwork, dedication, support and love! They spent their free time working on a game that truly touched them, they are simply doing this work to please the original creators and aimed the work as a fan service. How is this a crime?I can understand doing something that involves story telling can really confuse many fans out there and creators do not want that to happen, they want the original story ark to be created by them. But really man, what are the fans doing wrong? all the stories are fake.I just believe that if companies like these are pulling off ridiculous moves such as these, many people and fans will not show their love and support for their games, and with this restriction move, why should they be motivated to buy their sequel or new I.P when they can't work on their hobby based on a game that touched them.I was p*ssed off when I did hear SEGA told Bomber Games not to host the download, it's absurd! 8 years of hard work, and barely 3 days it was available for public download; SEGA told them to shut it down. This is not about copyright issues! It's about fans showing their love and support!Imagine you created a great game, you have many fans who praise your work and the game. Later fans decided to create flash animations, MUGEN characters, anime, comics, drawing based on your work. IT WILL BE ASTONISHING FOR YOU. Because you will be surprise by how a small thing you created spawned endless amount of "FREE" fan service work. And later a group decided to take this fan service to the next level and create a mini game identical to yours. How would you feel? You will be freaking amazed because someone has the same skills to replicate your own original product.However if that person started making money off that mini game then yes you have the right to sue and shut it down.I dislike Capcom, however one thing I do love is that they support their fans for creating fan service work based on their I.P. Not only are they showing their love and support but they are partially marketing your game to many others!Haloid, Dead Fantasy (Monty Oum), Mortal Kombat vs Street Fighter (proxicide). These guys used their free time to provide a fanservice, by doing so they are helping the publishers promote their I.P. Many people who saw those above animations would be interested in that 'versus' animation.Its bullsh* to say No to fanservice, who will buy your damn games if people can't show their passion and love for your I.P?

xino

May 5th 2011

I'm not 100% certain, but I think the 'use-it-or-lose-it' principle only applies to trademarks, not copyright. It's a common misconception that it applies to copyright too. Of course, copyright laws differ greatly from country to country, so it's entirely possible that a fan remake might be perfectly legal in some places and illegal in others. Unfortunately, lobbying from the United States is rapidly skewing global copyright laws in favour of rights holders and away from consumers.

Duncan

May 6th 2011

In reply to Duncan

Oh, and I'd add a quote from a commenter on Techdirt:"IP lawyers will tell you that IP must be vigorously defended in order to avoid losing their paychecks."

Duncan

May 6th 2011

Hey Duncan -- Here's Alex's full comment on "use it or lose it" copyright. -- "With copyright, while the protection remains the continued refusal to prevent unauthorised copying would leave the company in danger of having been deemed to have granted an implied licence to use the work. Once the infringement of IP is ignored it becomes increasingly hard to recover lost ground."

Mark Brown

May 6th 2011

I have re-created the "Temple Of Time" from the Nintendo Classic "The Legend Of Zelda: Ocarina Of Time" and have successfully ported my version of the game's level to an old but great game "Quake 3 Arena" and have contacted Nintendo about receiving permission on putting it into my mod for the game that I have been working on and later on releasing it freely to the public, a representative of Nintendo's customer service said that they can not grant me permission at the time because they can't get enough staff to look at the my question and determine whether or not I may legitimately use their trademark game's level in such a way...I am questioning my self on whether or not a non-profit level from their game may be allowed saying that the level isn't in a remake of their game itself (just ported to another game).I might later on take the chance on releasing it anyway, especially since I took the time to port the level.If anybody knows anyway I can contact Nintendo on such an official reason please tell me because I don't like taking chances, oh and can please somebody email me on whether or not this is true:I have been told that a fan made game, level, or movie on a particular companies game is legal as long as too many people don't play it and pose a possible threat. (please tell if this is true)

MOON

May 15th 2011

http://www.bbc.co.uk/news/technology-13429217Read That, things might change over here in the UK.

Tom Moore

May 18th 2011

I tottaly agree with you, xino. It dosen't make SENSE why the publishers normally shut down fan games. And- thats all I have to say...

Mystic M

Oct 3rd 2011

American here, I'm not sure any of the European people on here have heard of EarthBound or Mother 2 in japan. I've heard it wasn't released in Europe and we Americans were lucky as hell to get it. Considering NoA hates EarthBound, you would think they would destroy Mother 3. They practicably did by not even releasing it to America or PAL. They only teased us in Super Smash Brothers Brawl adding Lucas as a character. So whats this have to do with fan games? Mother 4. A fan game started by independent game developer Chaisu. He abandoned it and Zephys and The Dave picked it back up. They are still working on it. I'm afraid that will be ceased too... but the Japanese writer, Shigesato Itoi, who owns copyright, states: "If someone were to come up to me and say, 'I'd like to make a MOTHER 4,' I might just say, 'Sure, go ahead!'". Too things are wrong. The word "might." and he lives in Japan, not America. I sure hope that Mother 4 turns out okay...